16 T.C. 16">*16 The Commissioner has determined a deficiency in petitioner's income tax for the year 1948 of $ 1,456.87. The deficiency is due to one adjustment which the Commissioner has made to the gross income as disclosed by petitioner's return. That adjustment was "(a) Income from annuity $ 7,000.08," and is explained in the deficiency notice, as follows:

(a) It 1951 U.S. Tax Ct. LEXIS 320">*323 is held that the amount of $ 7,000.08 received by you in 1948 from the Metropolitan Life Insurance Company under Group Contract No. 103, Certificate No. A-12, and reported in Schedule E of your amended return but not brought into account for tax is includible in full in taxable income in accordance with the provisions of section 29.22 (b) (2)-5 of Regulations 111.

Standard deduction in the amount of $ 1,000.00 has been allowed in accordance with the provisions of section 23 (aa) of the Internal Revenue Code.

Petitioner contests this determination of the Commissioner by appropriate assignments of error.

FINDINGS OF FACT.

The facts have been stipulated and are adopted as our findings of fact. They may be summarized as follows:

The petitioner, Ella B. Higgs, is an individual residing in East Orange, New Jersey.

On or about March 15, 1949, petitioner filed a Federal income tax return for the calendar year ending December 31, 1948, with the collector of internal revenue for the second district of New York. The return showed a total tax liability of $ 305. On or about April 14, 1949, petitioner filed an amended income tax return with the collector of internal revenue for the second district1951 U.S. Tax Ct. LEXIS 320">*324 of New York showing the same amount of tax liability and disclosing receipt in 1948 of the amount of $ 7,000.08 from the Metropolitan Life Insurance 16 T.C. 16">*17 Co. under Group Contract No. 103, Certificate No. A-12. This amount of $ 7,000.08 was not included in petitioner's income for computation of her income tax liability for the calendar year 1948. The amount of $ 7,000.08 was received by petitioner as the designated dependent of her deceased husband, William J. Higgs (sometimes hereinafter referred to as the "decedent") who died on May 18, 1943, under the provisions of Group Contract No. 103 between his employer, Socony Vacuum Oil Co. and the Metropolitan Life Insurance Co. (hereinafter sometimes referred to as the "Insurance Company").

Group Contract No. 103 (sometimes hereinafter referred to as the "Plan") was entered into by the Socony Vacuum Oil Co. to fund its pension and retirement plan and provided for the payment of "retirement" annuities to the employees of the company after retirement from active employment. The Plan has been qualified under section 165 of the Internal Revenue Code. The Plan gave the decedent, as an employee of Socony Vacuum Oil Co., an option exercisable1951 U.S. Tax Ct. LEXIS 320">*325 prior to the commencement of retirement annuity payments to him whereby he might request the Insurance Company that his retirement annuity commence on the normal retirement date, at a reduced amount as determined by the Plan, and that an annuity be continued after his death to his designated dependent should such person survive him. It was further provided in the Plan that such request, when granted by the Insurance Company, could not be rescinded without its consent. Certificate No. A-12 was issued to the decedent on January 1, 1931, and contained the pertinent provisions of the Plan with respect to the retirement benefits and options available to the decedent.

Pursuant to the option provisions of the Plan, the decedent, under date of September 12, 1934, requested the Insurance Company as follows:

The Group Contract provides that in lieu of the full Retirement Annuity to which I am entitled under the terms of the Group Contract I may elect to receive a reduced amount of Retirement Annuity, which reduced amount shall be continued to a designated dependent after my death. I hereby elect such option modified to the extent that the Retirement Annuity payable to me during my lifetime1951 U.S. Tax Ct. LEXIS 320">*326 shall be reduced only to such an extent as shall be necessary to provide that the amount of annuity to be continued to my designated dependent shall be an annual annuity of $ 7,000.00, payable monthly. The designated dependent to whom payments are to be continued is ELLA BOLTON HIGGS born MAY 10, 1879.

This request was approved by the petitioner's employer and by the Insurance Company and in accordance therewith the decedent's retirement annuity was reduced from $ 21,750 annually to the amount of $ 18,985.27 annually, commencing on the actual retirement date. The retirement became effective January 1, 1935, and decedent received his first annuity payment on February 1, 1935.

16 T.C. 16">*18 The entire cost of the retirement annuity provided for the decedent and his designated dependent was borne by the employer. The net amount of that cost was $ 218,353.37. The last payment by the employer to the Insurance Company was made on January 1, 1934, at which time the annuity contract for the decedent became fully paid.

In the estate tax return of the estate of the decedent, no amount was included in gross taxable estate on account of the decedent's exercise of the option referred to above. 1951 U.S. Tax Ct. LEXIS 320">*327 The Commissioner in his notice of estate tax deficiency dated February 26, 1946, determined that the gross taxable estate of the decedent should be increased by $ 78,036 as "the comparable cost of a survivorship annuity payable to the decedent's widow under Group Contract No. 103, Certificate No. A-12 of the Metropolitan Life Insurance Company."

The executor of the decedent's estate on May 23, 1946, filed its petition with The Tax Court of the United States for a redetermination of the deficiency in estate tax set forth by the Commissioner. On March 2, 1949, the Tax Court promulgated its opinion, Estate of William J. Higgs, 12 T.C. 280, in which it determined that the decedent by exercise of his option in favor of the petitioner had made a transfer of an interest in the annuity which was includible in his estate under section 811 (c) of the Internal Revenue Code. On August 15, 1949, the Tax Court entered an order that the value of the annuity which was to be included in the decedent's estate was $ 33,867.86, and the final decision was entered November 7, 1949. Respondent did not appeal from the decision of the Court as to the value of the annuity, 1951 U.S. Tax Ct. LEXIS 320">*328 but a petition for review by the United States Court of Appeals for the Third Circuit was filed by the estate on the basic question of includibility of the value of the annuity in the estate of the decedent. In September 1950, the United States Court of Appeals for the Third Circuit reversed the foregoing decision of the Tax Court in Higgs v. Commissioner, 184 Fed. (2d) 427, and held there was not such a transfer by decedent as to bring it within the express meaning of section 811 (c), as amended by the Technical Changes Act, and that nothing was to be included in the estate of decedent on account of such transfer.

After the death of the decedent and prior to the commencement of the taxable year ended December 31, 1948, annuity payments (totaling $ 32,083.70) were received by the petitioner under the Plan in the amount of $ 4,083.38 for the year 1943, and in the amount of $ 7,000.08 for each succeeding year through December 31, 1947. During the taxable year ended December 31, 1948, annuity payments in the amount of $ 7,000.08 were received by petitioner under the Group Contract.

Petitioner reported as taxable income the full amount of the payments1951 U.S. Tax Ct. LEXIS 320">*329 received by her under the Plan for each of the calendar years 16 T.C. 16">*19 ending December 31, 1943 through December 31, 1947. On or about March 15, 1949, petitioner filed claims for refund of income tax paid in calendar years 1945, 1946, and 1947 attributable to the inclusion in gross income of the amounts received by her in those years from the Insurance Company pursuant to the Plan. Claims for refund of taxes paid with respect to the payments received in the years 1943 and 1944 were filed on April 1, 1949. As of the date of the stipulation of facts no action had been taken by respondent with respect to these claims.

The cost on September 12, 1934, (the date of decedent's election to take a reduced annuity) of a single life annuity contract of $ 21,750 per annum payable monthly to him with the first payment to be made on February 1, 1935, would have been $ 229,854, if it had been purchased under the rates provided in Group Contract No. 103 and used in the purchase of annuities for decedent. This amount ($ 21,750) of annuity is the amount which decedent would have received if he had not elected to have his retirement annuity reduced to provide an annuity of $ 7,000 to be paid to 1951 U.S. Tax Ct. LEXIS 320">*330 his wife after his death, if she survived him.

The cost on September 12, 1934, (the date of decedent's election to take a reduced annuity) of a single life annuity contract of $ 18,985.27 per annum payable monthly to him with the first payment to be made on February 1, 1935, would have been $ 200,636.33, if it had been purchased under the rates provided in Group Contract No. 103 and used in the purchase of annuities for decedent. This amount ($ 18,985.27) of annuity is the amount which decedent received under the Contract after his election to have his retirement annuity reduced to provide payments to his wife after his death, if she survived him.

Ultimate Findings of Fact.

No consideration was paid by petitioner or decedent for the annuity under which petitioner, as survivor annuitant, was receiving payments during the taxable year, and the entire amount of these payments is includible in petitioner's gross income.

OPINION.

The question which we have here for decision is whether the survivor annuitant under a group annuity contract is required to include the annual payment in gross income.

The substance of petitioner's contention that she should not, under the facts of the instant1951 U.S. Tax Ct. LEXIS 320">*331 case, be required to include the $ 7,000.08 in question in her gross income for 1948 is because she had a capital investment in the annuity which she received and that she should be permitted to recover the cost of that capital investment before she 16 T.C. 16">*20 should be required to include any of the annuity payments in her gross income. Petitioner contends that the $ 33,867.86 which the Tax Court decision in Estate of William J. Higgs, supra, adjudged should be included in the gross estate should be held to be the amount of the capital cost of the annuity which she received after her husband's death, or, in lieu of that cost, she claims a cost of $ 29,217.67. As to such alleged costs, petitioner submits in her brief:

* * * The petitioner should be allowed to recover this entire amount before being required to include any of the annuity payments in her taxable income or she should be permitted to take $ 33,867.86 as the cost basis of her annuity under Section 22 (b) (2) (A) of the Code for the purpose of determining the amount of taxable income included in each annuity payment.

In the alternative petitioner contends that her annuity had a cost of at1951 U.S. Tax Ct. LEXIS 320">*332 least $ 29,217.67. She states that contention in her brief, as follows:

If the regulations and Sections 165 (b) and 22 (b) (2) of the Code must be applied literally, the respondent is still in error in maintaining that the petitioner's husband made no contributions toward the cost of petitioner's annuity. The petitioner's husband was entitled under his employer's pension plan to receive a retirement annuity of $ 21,750.00 per annum but elected to accept, instead, a lesser annuity of $ 18,985.27 per annum in order to provide annuity payments to the petitioner after his death. It has been stipulated that, if purchased on the date of this election, the cost of the retirement annuity to which the petitioner's husband was entitled would have been $ 229,854.00 and the cost of the reduced annuity which he elected to receive would have been $ 200,636.33. It follows, therefore, that the decedent paid consideration for the annuity to the petitioner equivalent to the amount by which the cost or value of his own annuity was reduced, to wit, $ 29,217.67.

The petitioner, therefore, is entitled to take as the cost basis of her annuity for purposes of determining her taxable income under Section1951 U.S. Tax Ct. LEXIS 320">*333 22 (b) (2) (A) of the Code either the amount of $ 33,867.86, which was included in the estate of her deceased husband as the date of death value of her annuity, or the amount of $ 29,217.67, which is the cash equivalent of the consideration provided for the annuity by the petitioner's husband.

For reasons which we shall state more at length later we think petitioner is wrong in both contentions.

Respondent contends that the annuity payments are taxable to petitioner under section 22 (a) or section 22 (b) (2) of the Internal Revenue Code. Section 22 (a) is so familiar it need not be quoted. Section 22 (b) (2) is printed in the margin. ¹

1951 U.S. Tax Ct. LEXIS 320">*334 16 T.C. 16">*21 We think it is clear that the $ 7,000.08 which petitioner received in 1948 from the Insurance Company under Group Policy No. 103 was gross income to her under the provisions of section 22 (b) (2), I. R. C. Neither petitioner nor her husband William J. Higgs, deceased, paid anything toward the cost of the group annuity -- that much is clear from the stipulated facts. Treasury Regulations 111, section 29.22 (b) (2)-5 contains a provision which reads, as follows:

If upon the death of a retired employee, the widow or other beneficiary of such retired employee is paid, in accordance with the terms of the annuity contract relating to the deceased employee, an annuity or other death benefit, the amounts received or made available to her shall be included in her income to the extent that they would have been included in the income of the deceased employee had he lived and received such payments. See also section 126 (a). As to taxation of life insurance benefits in connection with annuity contracts, see section 29.165-6.

So far as we can see this is a valid regulation and is in accord with the law taxing annuities. Clearly the amount of the annuities provided in the annuity 1951 U.S. Tax Ct. LEXIS 320">*335 policy would have all been taxable to William J. Higgs if he had not elected to receive the smaller annuity. He paid nothing toward the cost of the group annuity policy and whatever he should receive under the policy would clearly be taxable to him. When a part of the larger annuity which William J. Higgs would have otherwise received went over to petitioner by reason of the option which he exercised, it acquired no different status as to cost in the hands of the widow from what it would have had in the hands of the husband.

Petitioner's contention that she had a cost basis of the annuity of $ 33,867.86 because that amount was included by the decision of the Tax Court in the gross estate of William J. Higgs, if it ever had any validity, is no longer tenable. As we have already pointed out, the Third Circuit reversed our decision in the Higgs case, supra, and held that nothing should be included in decedent Higgs' estate by reason of his exercise of the option to take a lesser annuity than he otherwise 16 T.C. 16">*22 would have received, and permitting his wife to receive a part of his annuity, if she survived him. See also Estate of Frederick John Twogood, Deceased, 15 T.C. 989.1951 U.S. Tax Ct. LEXIS 320">*336

We likewise are of the opinion that petitioner did not have a cost basis of her annuity of $ 29,217.67 as argued in her brief. The proposition advanced by the petitioner has been answered, we think, by the Tax Court in Charles L. Jones, 2 T.C. 924">2 T.C. 924. In that case, we said:

* * * The obvious intention of Congress in dealing with the three types of contracts was to permit the insured or annuitant and his beneficiaries to recover tax-free the cost, i. e., the amount paid by them for the policies. This view is supported by the concluding sentence in the section, dealing with a transfer for a valuable consideration, under which only the sums actually paid by the transferee may be recovered tax-free. Moreover it accords with the general use of cost under the revenue acts. Compare, e. g., section 111, I. R. C., dealing with the determination of gain or loss upon sale, section 113, I. R. C., specifying the basis to be used, and section 23 (1) and (m), allowing depreciation and depletion. Thus we need not rely solely upon the administrative rulings to support our conclusion that Congress intended to limit the deduction under section 22 (b) (2), supra1951 U.S. Tax Ct. LEXIS 320">*337 , to the aggregate premiums or consideration paid by the annuitant except where, as in the Deupree and Brodie cases, supra, the annuitant has been in receipt of taxable income in the year in which the annuity was purchased for him by his employer. [Emphasis added.]

Petitioner's contention that the $ 7,000.08 which she received in 1948 from the Metropolitan Life Insurance Co. should not be included in her gross income is not sustained. Respondent's determination as to this $ 7,000.08 is approved. Petitioner has arguments in her brief other than the ones which we have noted above as to why the $ 7,000.08 should not be included as a part of her gross income but we do not deem it necessary to discuss them separately.

Petitioner in her brief also argues that she is entitled to the benefits of section 126 (c), I. R. C.² Petitioner in arguing that she is entitled to the benefits of section 126 (c), says in her brief, as follows:

16 T.C. 16">*23 * * * Section 126 (c) contemplates that if the value of the right of the beneficiary to receive such items of income is included in the gross estate of the decedent for estate tax purposes the recipient of the income shall be allowed to 1951 U.S. Tax Ct. LEXIS 320">*338 deduct that portion of the estate tax levied on the decedent's estate which is attributable to the inclusion of this right in the estate.

The cross-reference to these provisions of Section 126 of the Code clearly indicates that if the petitioner is not permitted to recoup tax free any cost basis of the annuity which she is receiving she is at least entitled to a deduction from her taxable income for the estate tax attributable to the inclusion of her annuity in the estate of her deceased husband.

As we have already pointed out our decision in Estate of William J. Higgs, Deceased, supra, has been reversed by the Third Circuit and by reason of that reversal, nothing is to be included in the estate of William J. Higgs by reason of his exercise of the option to receive a lesser annuity in order that his wife might receive an annuity after his death. Therefore, in the light of these facts it seems clear that section 126 (c) would have no application to the situation we have here. Petitioner's contention as to the applicability of section 126 (c), is not sustained.

1951 U.S. Tax Ct. LEXIS 320">*339 Decision will be entered for respondent.